92 Decision Citation: BVA 92-14334
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-45 094 ) DATE
)
)
)
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
sinusitis.
2. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
right knee disorder.
3. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
right elbow disorder.
4. Entitlement to service connection for a left knee
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. Gottfried, Counsel
INTRODUCTION
The veteran served on active duty from January 1967 to
January 1969, August 1969 to July 1971, September 1972 to
March 1974, February 1976 to February 1978, and August 1978
to March 1986.
This case came before the Board of Veterans' Appeals
(hereinafter the Board) on appeal from rating decisions from
the Department of Veterans Affairs (hereinafter VA)
St. Louis, Missouri, Regional Office (hereinafter RO). The
RO denied service connection for all of the disorders at
issue in a rating decision of June 1990. The notice of
disagreement was received in October 1990. The RO continued
to deny service connection in a rating decision of November
1990. A statement of the case was issued in December 1990
covering the issues of whether new and material evidence had
been submitted to reopen claims of entitlement to service
connection for sinusitis, right knee and right elbow
disorders, and entitlement to service connection for a left
knee disorder. The veteran's substantive appeal was
received in March 1991. The veteran testified at a hearing
in the RO in May 1991. A VA hearing officer continued to
deny the veteran's claims in May 1991. A supplemental
statement of the case was issued later that month. The case
was received and docketed at the Board in October 1991. The
veteran has been represented throughout his appeal by
Disabled American Veterans. That organization submitted
additional written argument to the Board in March 1992. The
case is now ready for appellate review.
REMAND
In referring to the issues of whether new and material
evidence has been submitted to reopen claims of entitlement
to service connection for sinusitis, a right knee disorder
and a right elbow disorder, the appellant's representative
reported in the informal presentation of March 2, 1992, that
the RO did not consider those issues in relation to the
two-step analysis set forth by the United States Court of
Veterans Appeals[hereinafter the Court] in Manio v.
Derwinski, U.S. Vet. App. No. 90-86 (February 15, 1991). It
was noted that, in that case, the Court stated that it first
had to be determined whether there was new and material
evidence submitted to reopen a claim and, if there has been,
whether the new and material evidence, when considered in
conjunction with all the evidence of record, provides a
basis for favorable action. It has been requested that the
case be remanded to the RO so that the RO can comply with
the requirements set forth by the Court. In this regard,
the Board has noted that, while the statement of the case
includes reference to unappealed rating decisions of July
1987 in relation to the right elbow and right knee, and
October 1987 in relation to sinusitis, and included a
recitation of pertinent laws and regulations, only a brief
statement was made regarding the reasons for the decision.
This is also true with respect to the supplemental statement
of the case of May 1991. The two-step analysis as described
in the Manio decision requires a full analysis. The Board
has also noted that, while the RO has reported that the
evidence received since the prior denial actions does not
show any evidence of the claimed disorders, the veteran
reported in his statement dated August 23, 1991, that he is
receiving treatment for sinusitis. The Board believes that
further development is needed on these matters.
The Board is mindful of the VA's duty to assist the veteran
in the development of facts pertinent to his claim.
38 U.S.C. § 5107(a). The Court has held that the duty to
assist the veteran in obtaining and developing available
facts and evidence to support his claim includes obtaining
medical records to which the veteran has referred.
Littke v. Derwinski, U.S. Vet. App. No. 89-68 (December 6,
1990). Under the circumstances of this case, we are of the
opinion that additional assistance is required.
The case is REMANDED to the RO for the following:
The entire record should be reviewed and
the veteran contacted in an attempt to
clarify all sources of treatment or
examination (names, addresses and dates)
for any of the claimed disorders since
the veteran's separation from service.
The veteran should be requested to sign
an authorization form(s) for the release
of any records to the VA. Thereafter,
all records should be procured and
associated with the claims file. Copies
of any records of treatment from the VA
should also be secured and associated
with the claims folder.
Following the completion of this action, the RO should
review all of the issues. The RO should review the issues
of whether new and material evidence has been submitted to
reopen claims of entitlement to service connection for
sinusitis, a right knee disorder and a right elbow
disorder in light of the two-step analysis set forth in
the Manio case. In applying the two-step analysis the RO
should first determine whether there is new and material
evidence to warrant a reopening of any of the claims. If
there is, and any of the claims are reopened pursuant to
38 U.S.C. § 5108, the RO should further determine whether
the "new" evidence, when considered with all of the other
evidence contained in the entire record, warrants a
revision of the prior determination(s). In addressing all
of the appellate issues, the RO should review all
applicable laws and regulations.
If any action taken is adverse to the veteran, he and his
representative should be provided with a supplemental
statement of the case that fully addresses all applicable
legal authority, including laws and regulations. It
should provide a full discussion as to how the decision(s)
was reached. The veteran and his representative should
then be provided an adequate opportunity to respond. The
case should then be returned to the Board for further
appellate review.
The purpose of this remand is to procure additional
clarifying information, and to ensure full due process of
the law. No action is required of the veteran until he
receives further notice.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
HARRY M. McALLISTER, M.D.
J. U. JOHNSON
*38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of Veterans'
Appeals Section, upon direction of the Chairman of the Board, to
proceed with the transaction of business without awaiting
assignment of an additional Member to the Section when the
Section is composed of fewer than three Members due to absence
of a Member, vacancy on the Board or inability of the Member
assigned to the Section to serve on the panel. The Chairman has
directed that the Section proceed with the transaction of
business, including the issuance of decisions, without awaiting
the assignment of a third Member.
Under 38 U.S.C. § 7252 (1992), only a decision of the Board of
Veterans' Appeals is appealable to the United States Court of
Veterans Appeals. This remand is in the nature of a preliminary
order and does not constitute a decision of the Board on the
merits of your appeal.